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By John CaherPublished: Aug 11, 2014

Circuit Remands Case of Albanian Sex Trafficking Target

An Albanian refugee seeking asylum from sex trafficking may be able to stay in the United States because of a federal appellate ruling requiring immigration authorities to re-evaluate whether she is a member of a specialized group that needs protection.

The remand by the U.S. Court of Appeals for the Second Circuit gives the Board of Immigration Appeals a chance to apply a new and apparently shifting standard on “particularized social group” to a woman whose claim for asylum is predicated on her status as a young, unmarried woman in a region of rampant human trafficking.

Paloka v. Holder, 12-4987-ag, centers on a woman whose family has been targeted for its anti-communist views for generations.

Records show that Silvana Paloka’s grandparents and parents had been persecuted for their political beliefs from the 1960s until the collapse of the communist regime in the 1990s. The family’s land was appropriated, and her grandparents were interned in a camp in the mid-1960s. Paloka’s father remains disabled from a beating he endured by government agents in 1985.

In 2008, Paloka was stopped by Albanian police, who told her they were aware of her family history, the fact that her parents were disabled and that her brothers were too young to protect her, and attempted to coerce her into prostitution, according the circuit’s decision.

Paloka resisted repeated sex trafficking efforts by the police, and escaped their grasp once when neighbors intervened and another time when she was rescued by an armed shepherd. It was shortly after she was saved by the shepherd when Paloka in 2008 fled from her home to the city of Shkoder until she make her way to New York City, where she now seeks sanctuary.

In her bid to remain in this country, Paloka testified before Immigration Judge Alan Vomacka that she fears returning to Albania because of the threat of forced sex trafficking.

To meet the standard for asylum, Paloka needed to prove that she was a member of a “particularized social group” that is susceptible to persecution. She cited the fact that she is a young, unmarried woman from a region where, according to the U.S. Department of State, public officials facilitate sex trafficking.

Vomacka denied Paloka’s application for asylum and protection under the Convention Against Torture, holding that the “particularized social group” she cited was “too broad.”

The judge opined that Paloka was not necessarily targeted for her membership in that group, but because she was a “good target for criminal opportunistic behavior.”

On appeal to the Board of Immigration Appeals, the panel did not reach the issue whether Paloka had suffered persecution, but upheld Vomacka after finding that the proposed social groups she identified with were “not defined with sufficient particularity to be cognizable.” The immigration appeals board also said Paloka had not demonstrated that she was singled out for sex trafficking because of her family’s political history.

The Second Circuit, in an opinion by Judge Jon Newman (See Profile), said the immigration appeals board’s interpretation of what is meant by “particularized social group”—a phrase Congress did not define—has evolved considerably in recent years. It sent the matter back to the board for reconsideration in light of the most recent interpretations.

After Paloka was denied asylum, the board seemingly adopted a broader standard for cases like Paloka’s “that straddle the line between individuals threatened by state-sponsored or state-condoned criminality on account of their membership in a particular social group and individuals threatened only because they live in a country with pervasive criminality,” Newman wrote.

The Second Circuit, noting inconsistentcy among the circuits in the definition and application of the “particularized social group” concept, said the most up-to-date immigration appeals board precedents focus initially on “how the society in which the group exists views the group.” Then, the court said, the question becomes whether the persecution resulted from the victim’s status as a member of that group.

“We conclude that it is necessary to remand to the [Board of Immigration Appeals] for a redetermination of whether Paloka has identified a cognizable social group in light of the [board's] recent clarifications,” Newman wrote in an opinion shared by circuit judges John Walker Jr. (See Profile) and José Cabranes (See Profile).

Newman suggested the immigration appeals board “might also explain whether it accepts [Vomacka's] view that the happenstance arrivals of helpful neighbors and a shepherd to extricate Paloka from a dangerous situation indicate that she will not be at risk in the future.”

In a footnote, Newman added: “We can safely assume that on reconsideration the [Board of Immigration Appeals] will not embrace [Vomacka's] view that to show a ‘probability’ of future persecution, which he defined as a 50 percent likelihood, Paloka had to present evidence that half of all unmarried young Albanian women are being forced into prostitution.”

Paloka is represented by Kai De Graaf of Manhattan. Margot Carter, a trial attorney with the Office of Immigration Litigation in Washington, argued for the Department of Justice on May 21.